At best, decision disappointing

Posted: Friday, December 15, 2000

Even with the presidential race finally settled, it seems clear that the debate will continue for some time to come. Not debate over whether George Bush or Al Gore was the actual choice of more voters in Florida and elsewhere; there will be plenty of that, yes, but it will winnow as events make this argument increasingly pointless.

The debate that will last is the one over the divided Supreme Court decision in Bush v. Gore that essentially handed the election to Bush.

In the immediate aftermath, it's easy to see Bush as the winner and Gore as the loser in the court's ruling. But in the long run, it may become clearer that this was a decision with more than enough in it to disappoint everyone.

Surely President-elect Bush and his supporters cannot be pleased with the withering language of Justice John Paul Stevens' dissent, the by-now oft'-quoted: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

Indeed, Gore partisans started repeating these words before the ink was even dry on the 65-page decision. Especially the part about never knowing the winner with certainty.

The thing is, we do now know the winner with certainty: George Bush. Justice Stevens of course meant the winner in terms of actual votes cast. But by ruling that the so-called undervotes could not be counted, a majority of the Supreme Court (slim though it may have been) made the winner evident.

This -- the practical determination of the presidency by another branch of the federal government -- may be the biggest problem. Justice Stevens' dissent, joined by Justices Ginsburg and Breyer, addresses what he sees as the absence of a compelling federal question to justify the court's involvement.

The "equal protection" issues of conflicting standards for divining voter intent could be resolved, the dissent says, by independent judges in Florida. The above-quoted language from Justice Stevens concludes that, to rule as the majority did, one must believe that Florida justices cannot be trusted to rule impartially.

But many have read Justice Stevens' words as applicable to the Supreme Court, too, and this is a mighty shame. Historically, there have been times when, at least in hindsight, the High Court has acted with a discernible political character. This could be said of the Reconstruction Court that handed down the infamous Dred Scott, Plessy v. Ferguson, and civil rights cases decisions and of its opposite, the Warren Court.

Seldom, though, has the court weighed in on matters so squarely in the political arena, and when it has -- the Watergate tapes decision comes to mind -- it has generally done so with unanimity.

You may not hear many Bush supporters talking about the partisanship of the dissenting justices, but Gore supporters would be mistaken to think that they were the only ones who perceived partisanship in the court's opinions, dissenting and majority. The true failure of the Court, and of Chief Justice Rehnquist in particular, lies in not finding some agreement that would have brought at least clarity, if not unanimity, to the post-election muddle.

Too much to ask from a court bitterly divided along partisan lines, in a nation split down the middle? Perhaps.

But with its confusing and sometimes contradictory decision in Bush v. Gore, the Rehnquist Court damaged its own reputation and that of the court. Not necessarily by what it decided, but how.

Dan Rather works for CBS News.

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